“This is a case about just how far the First Amendment bends in allowing government to punish its employees for the viewpoints they communicate in their
private lives,” Justice Nels Peterson wrote. “I am doubtful that it allowed the punishment imposed here.”

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Justice Nels Peterson, Georgia Supreme Court (Photo: Ashley Stollar)

Though she lost her appeal, a teacher may have had her First Amendment rights violated when her principal suspended her for criticizing the Black Lives Matter movement on Facebook, a Georgia Supreme Court justice said in a separate opinion Monday.

The high court, based on sovereign immunity, unanimously declined to review a Georgia Court of Appeals decision dismissing the teacher’s civil suit against school officials.

But Justice Nels Peterson wrote a special concurrence, joined by Chief Justice P. Harris Hines and Justice Keith Blackwell, that expressed concern about the teacher’s discipline.

“This is a case about just how far the First Amendment bends in allowing government to punish its employees for the viewpoints they communicate in their private lives,” Peterson wrote. “I am doubtful that it allowed the punishment imposed here.”

“Kelly Tucker, a public school teacher in Tift County, engaged in a written debate on Facebook regarding the Black Lives Matter movement. The exchange became heated and racially charged; after another participant addressed her with an epithet, Tucker posted a lengthy message dismissive of the movement and derogatory of ‘thugs,’” Peterson said.

“This message was plainly about a topic of public concern, with no obvious link to her employment in public education. In this procedural posture (reversal of the denial of summary judgment), we assume that Tucker posted the message on her own time and on her own computer, and without referencing her employment,” Peterson said.

Peterson said he concurred with the denial of the writ of certiorari because Tucker “cannot prevail on the claims she actually brought even if her right to free speech was violated” because of the government’s sovereign immunity protection. He also said the outcome could have been different if she had pursued an administrative review rather than a lawsuit, and he suggested that the decision should not be taken as precedent for future disputes.

“People viewing the debate who disagreed with the viewpoint she expressed discovered she was a teacher and complained to a local elected official, Tucker’s principal, and the local school superintendent. The school administration determined that the message Tucker posted was offensive and decided to punish her. They eventually suspended her for five days and required her to participate in diversity training,” Peterson said.

He noted that she “did not avail herself of her right of administrative appeal,” and instead filed a lawsuit against the superintendent and the school board chair alleging violation of her First Amendment rights. The Court of Appeals, reversing the court below, held that the school officials were entitled to qualified immunity because they did not violate any clearly established law.

“I agree that there does not appear to be any clearly established law in this jurisdiction that the school officials violated. Indeed, Tucker doesn’t cite a single case to that effect from this Court, the Eleventh Circuit, or the United States Supreme Court, which are the only courts that can clearly establish law for this jurisdiction, and I haven’t found any,” Peterson said.

“Nevertheless, I write separately to express my grave concerns that the school officials may well have violated Tucker’s First Amendment rights,” Peterson added.

The school officials were represented by Megan Pearson and Janet Scott of Smith, Welch, Webb & White in McDonough as well as Ross Pittman and Larry Mims of Reinhardt Whitley Summerlin & Pittman of Tifton.

“We’re happy with the result,” Pearson said. “We think it was the right decision.”

She noted that the teacher was not fired, only suspended and asked to take diversity training because parents in the community were genuinely concerned about whether she could treat all students fairly.

Tucker’s attorney, Craig Webster of Henrick Enterprises in Tifton, said he would meet with her later Monday to discuss whether to attempt to bring the case to the U.S. Supreme Court.

“We are thankful to Justice Peterson for writing an extensive concurrence to the Supreme Court’s denial of our petition for certiorari and are enormously grateful to him, Chief Justice Hines and Justice Blackwell,” Webster said in an email. “We, of course, respectfully take issue with the Court as to whether the law was clearly established at the time of the violation of Mrs. Tucker’s rights and are giving due consideration as to whether we will ask the United States Supreme Court to grant certiorari on this important case.”

If Tucker does decide to appeal, Peterson’s concurrence hints that she may have a conceivable shot.

“American courts have long been jealous guardians of the right to free speech. And at the core of the First Amendment’s protection of speech is a firm command that government must not engage in viewpoint discrimination,” Peterson said. He quoted a 1943 U.S. Supreme Court case, W. Virginia State Board of Education v. Barnette, saying, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Peterson set aside judgment on what the teacher said. “Tucker’s Facebook screed does not strike me as possessing any redeeming social value. But the First Amendment does not turn on whether a judge or society as a whole believes a particular viewpoint is worth sharing,” Peterson said.

He added that U.S. Supreme Court precedent shows “a bedrock principle underlying the First Amendment,” which says that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Peterson said that “bedrock principle” is “difficult to reconcile with allowing government to punish its employees for viewpoints they communicate wholly unrelated to their employment.”

The justice said government employers “clearly have authority to control their employees in the course of their employment. But, he added, “It is something else entirely to hold that government employers can punish their employees based on viewpoints expressed in private[.] … It is far from obvious that the precedent of the Supreme Court requires us to allow such a thing.”

The case is Tucker v. Atwater, No. S18C0437.

Katheryn Tucker

Katheryn Hayes Tucker is an Atlanta-based reporter covering legal news for the Daily Report and other ALM publications.

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